An appeal is likely

Decision in N.Y. has implications beyond armed forces

July 03, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- In the most complete court defeat yet for the government's "don't ask, don't tell" policy, a federal judge in New York ruled it is unconstitutional for the armed forces to treat homosexuals differently solely because of their sexual activity.

U.S. District Judge Eugene H. Nickerson of Brooklyn, ruling in a case that may go to the Supreme Court, said the military services may not impose "unequal conditions" on homosexuals based on their sexual behavior.

"It is not within our constitutional tradition for our government to designate members of one societal group as pariahs," the judge said.

Nickerson rejected the government's core justification for the policy -- the need to deter homosexual sex -- after a higher court told him last year to reconsider an earlier, narrower ruling against the policy.

The decision has implications beyond the armed forces: The judge declared that "homosexuals meet the criteria of a group warranting heightened protection" against unequal treatment by the government. He said there has been "widespread discrimination and social pressure" against homosexuals.

If the decision is upheld by higher courts, after an appeal that seems all but certain, it could go further than any prior decision toward assuring legal equality for homosexuals.

The Defense Department, where the policy originated, and the Justice Department, which has vigorously defended it in courts across the country, said they would study the ruling before deciding whether to appeal it. The Pentagon did note that all of the federal appeals courts that have reviewed the policy so far have upheld it.

Because the military's policy on gays and lesbians singles them out for discrimination, Nickerson said, the services cannot discharge homosexuals for engaging in sex when heterosexuals would face no punishment for sexual activity.

Moreover, the judge said, the services cannot enforce another part of the policy, which requires discharging service members who say they are gay or lesbian. The policy allows those who make such statements to remain in the service only if they can later prove they did not mean it.

Lambasting the Pentagon's argument that the policy is needed to protect "cohesion" within military units, the judge said that argument "is a euphemism" for giving in to prejudice. "The Constitution does not grant the military special license to act on prejudices or cater to them," he said.

The Clinton administration policy, written into law by Congress in 1993 and put into effect in early 1994, allows homosexuals to remain in the service only if they do not engage in homosexual acts and do not admit they are homosexual.

Saying that the policy forces homosexuals into silence about their sexual characteristics, Nickerson wrote: "For the United States government to require those self-identifying as homosexuals to hide their orientation and to pretend to be

heterosexuals is to ask them to accept a judgment that their orientation is in itself disgraceful and they are unfit to serve."

Military laws aimed at heterosexuals as well as homosexuals already allow the services to "deter a whole gamut of sexual conduct from sodomy and rape to sexual harassment and lewd, lascivious, and reprehensive conduct," the judge said.

Thus, he said, the military does not need another law punishing only homosexuals since it is a fact that they will not violate military law more often than heterosexuals would.

The "don't ask, don't tell" policy has been upheld by three federal appeals courts, but some judges have voiced doubts about its validity because it punishes service members for merely saying they are gay or lesbian.

Even though the policy has met differing fates in different courts, and the Supreme Court has not agreed to step in, decisions so far generally have had one thing in common: The courts ruled, or at least assumed, that the military was free to punish those who engage in homosexual sex, as opposed to merely talking about sexual orientation.

Nickerson, striking out in a new direction, disagreed. To demonstrate how discriminatory he found the law to be, he said it would cover "innocuous" acts such as holding hands or kissing in private, away from a military base.

"It is hard to imagine why the mere holding of hands off base and in private is dangerous to the mission of the armed forces if done by a homosexual but not if done by a heterosexual," he commented.

Chai Feldblum, a Georgetown University law professor who is one of the architects of the constitutional theory that Nickerson upheld yesterday, commented: "This will be critical in forcing courts to see gay people as full human beings, as individuals whose sexual conduct is no different in quality from that of heterosexuals."